Arbitration Clauses For Nursing Home Admissions Should Not Be Allowed

One of the most difficult times for any family (and for that matter any person) is when a loved one has to be admitted into a nursing home, either for a short-term, rehabilitative stay or for long-term placement. Americans are living longer, and more and more people have to go into long-term care facilities.

Our firm meets with countless families who claim their loved ones received subpar nursing or medical care in a nursing home or rehabilitation facility. In almost every instance, when we ask the person if they or their loved one signed a binding arbitration agreement, we are told something like, “I do not remember signing anything like that.” In fact, most people tell us they remember no mention of arbitration during the admission process to the nursing home. However, without fail, the nursing home produces an arbitration agreement that has been signed either by the resident or by a family member. People are frequently surprised to find that such a form was signed.

In every nursing home case we file, we are finding that we must fight the arbitration battle first. Nursing homes file motions to dismiss our clients’ cases, arguing that the resident or their family members waived their Constitutional right to a trial by a jury and arguing that those persons must submit any claim they may have to an arbitration body. While our firm has had some success defeating these measures, most people are denied their right to have a jury of their peers decide if the medical negligence is compensable. Win or lose, many of our clients become frustrated because resolving this issue takes several months, delaying their rights to obtain justice for their loved one or their families.

Aware of this prevailing problem of hiding the arbitration agreement in the stack of documents people are asked to sign at such a vulnerable time, the Centers for Medicare and Medicaid Services (CMS) has proposed a rule that would help avoid some of these issues. CMS is proposing that, for a facility to receive Medicare or Medicaid benefits, an appropriate person with the nursing home must fully explain the consequences of an arbitration agreement to the resident or to the appropriate family member.

CMS is also recommending that such arbitration agreements must be entered into voluntarily and must provide convenient forums and a process for a true neutral arbitrator. CMS is also recommending that signing the arbitration agreement may not be a condition to the admission of the person to the nursing home. In other words, the resident or his or her family member must be told, “We are not requiring you to sign this agreement as a condition to you (or your mother) being admitted to this facility to receive care.” CMS’ proposed rule would also limit who can sign on behalf of the resident, focusing more on the requirements of state law.

While it would be our preference that arbitration agreements be banned for all nursing home admissions, especially for those facilities that receive taxpayer dollars to provide care for the elderly and infirm, CMS at least is showing some common sense in approaching this serious issue and ensuring that individuals understand their options with respect to entering into binding arbitration agreements. CMS is accepting comments on this and other proposed rules until Sept. 14, 2015. We are hopeful that this rule will go into effect and will stymie the oppressive effects of arbitration agreements in nursing home settings. Ben Locklar, a lawyer in our firm, handles nursing home litigation and is knowledgeable in this area. If you need any information on this subject, contact Ben at 800-898-2034 or by email at Ben.Locklar@beasleyallen.com.